Investigatory Powers Act: Shifting the Power Balance

On the 29th of November 2016, the Investigatory Powers Act 2016 was granted Royal Assent, having been voted in by the House of Parliament on the 17th of November. This act makes provisions about the interception and retention of data and the treatment of that data. It is clear that the provisions contained in this act shifts the balance away from the right to privacy, allowing extensive powers of surveillance. These changes have received mixed responses. The left-wing or liberal sections of the media fear that the act will potentially allow unacceptable infringements on the right to privacy. Meanwhile, the right-wing or conservative sections of the media view the act as necessary to battle crime, terrorism in particular.

It is clear, therefore, that the merits and criticisms of the Investigatory Powers Act depend largely on values. For this reason, this article will view the Investigatory Powers Act from two different perspectives. From the perspective of those who place more weight on the right to privacy, and then from the perspective of those who place more weight on allowing the state powers of surveillance.

Right to Privacy Perspective

The Investigatory Powers Act is a vast piece of legislation, amounting to 305 pages. It is, therefore, no surprise that it is being described as groundbreaking by allowing the most extensive powers of surveillance in the Western World. This has raised a number of concerns, most notably from Edward Snowden, who is well-known for whistleblowing on the United State’s illegal surveillance of citizens. Snowden tweeted: “The UK has just legalised the most extreme surveillance in the history of western democracy. It goes further than many autocracies”.

Antonella Galetta, writing in the European Journal of Law and Technology which is published by Warwick University, warns that the use of wide-spread surveillance in democratic societies creates a sense of suspicion amongst citizens, affecting the relationship between citizen and state. This relationship is often considered as necessary for a democratic society to function effectively. Therefore, the damaging of this relationship should be avoided at all.

Another argument which has been raised by Lord Strasburger, a peer in the House of Lords, is that this act has created the tools required for repression of citizens, should the powers fall into the wrong hands. This argument is made often, with those opposed to the act describing it as “Orwellian”, a reference to George Orwell’s novel 1984. The final argument is that citizens should not have their data retained in this way unless they have committed an offence, and to do otherwise violates the presumption of innocence.

State Powers of Surveillance Perspective

It is clear that the purpose of this act is to assist the state in preventing potential offences or, if the offence has already taken place, to assist the state in investigating that offence. Large portions of the public view this power as essential in combatting terrorism, and argue that the loss of privacy is relatively minor in comparison with the aim the state hopes to achieve. It would also assist in combatting serious and organised crime.

Another argument made in favour of the Investigatory Powers Act is that the act merely enforces into law what the intelligence agencies, MI5, MI6 and GCHQ, have been doing for 17 years. This follows the news in October 2016 that the Investigatory Powers Tribunal ruled that the MI5, MI6 and GCHQ unlawfully collected data for 17 years. It has been argued that, while this was done illegally, the effects of this illegality were so minimal that they went unnoticed. Therefore, this act will merely maintain the same level of surveillance, but prescribe this surveillance into law.

It has also been argued that this act reinforces democracy, the rule of law and Parliamentary sovereignty. This argument reflects the fact that the state’s powers of surveillance are reflected in a recent Act of Parliament, in which Members of Parliament decided, following lengthy debates and evidence, how much surveillance powers the state should have. In addition, the act must be reviewed within six years. It will, therefore, be possible for the UK to alter the act if, for example, the public’s attitude towards surveillance change.

Finally, it is suggested that this act provides a sufficient level of protection to citizens through the ‘double lock’ placed on authorising warrants. The act creates a new body of commissioners, which will be lead by the Investigatory Powers Commissioner. The Investigatory Powers Commissioner must hold or have held high judicial office. This commission will be tasked with overseeing the use of investigatory powers. The ‘double lock’ refers to the fact that, before the Secretary of State is able to issue a warrant, it must be approved by a Judicial Commissioner. In addition, it will be up to the Investigatory Powers Commissioner to determine how the commission will operate and the Government will not be able to dictate its remit. It has been argued that these provide sufficient protection to citizens.

Conclusion

It is clear that the Investigatory Powers Act 2016 will provide the state with extensive powers of surveillance. However, how much of an effect this will have, and whether this is a positive change or a negative change, is disputed. Many of the arguments clearly depend largely on each individual’s values, and whether they place more weight on the right to privacy, or on the state’s powers of surveillance.

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